Document Type

Article

Publication Title

Seattle Journal of Environmental Law

Publication Date

2012

Abstract

The actual and projected manifestations of climate change, including sea level rise, stronger rainstorms, more severe storm events, inland storm surges, and associated flooding, pose a host of adaptation challenges. The effective management of hazardous waste sites under the new environmental conditions occasioned by climate change presents one such adaptation challenge, though this challenge is easily overlooked in the rush to protect highly visible and obviously vulnerable infrastructure and populations such as coastal communities. Many hazardous waste sites have been remediated, or are proposed to be remediated, relying in whole or in part on engineering and institutional controls meant to prevent or limit exposure to contaminants. These remedies include caps over contaminated sediment or soil, deed restrictions, barrier walls and others controls, all of which can allow the contaminants to remain onsite indefinitely.

However, the traditional design of these engineering and institutional controls affords protection from historical and predicted environmental conditions that may not reflect real-world conditions generated by climate change, either already present or anticipated. This raises both backward-looking considerations for sites already remediated using engineering and/or institutional controls, and forward-looking considerations with respect to the selection of remedies at sites undergoing cleanup. Could climate change-related storms, flooding, or other events compromise engineering and/or institutional controls and cause new releases of and exposure to contaminants? If so, can or should further work be required at these sites to reduce this risk? In remedy selection, how should regulators take into account the effects of climate change when assessing the protectiveness of remedies, especially remedies incorporating engineering and/or institutional controls?

This article considers these questions in the context of a particular type of contaminated site-sites with contaminated sediments subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Although climate change may impact a variety of waste sites in different ways, even those without sediment contamination, this article focuses on sediment sites so as to frame a more manageable inquiry susceptible to in-depth treatment. The following section, Part II, identifies the vulnerability of contaminated sediment sites to climate change. The section describes sediment contamination, regulatory approaches to remediating contaminated sediments, and how climate change may impact sediment remedies. Part III evaluates strategies for managing climate risks at closed, previously remediated sediment sites; these strategies include reopening consent decrees. Part IV considers how climate effects may impact the selection of remedies dependent on engineering or institutional controls at contaminated sediment sites. The article concludes that the U.S. Environmental Protection Agency (the EPA) should monitor sediment sites for climate-related damage, particularly after extreme weather events, and should require that future remedies be designed to withstand upper-bound, climate change-adjusted frequencies and severities of relevant climate events. Proposed approaches include more aggressive monitoring requirements that clearly require prompt assessment of sites after severe events, and agreements that contain modified reopener language that expressly addresses whether and when climate change related weather events, projected or actual, will trigger a reopener.

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